Rowan v. State

• Decision Date: 10 January 1939
• Docket Number: 28.
• Citation: 3 A.2d 753,175 Md. 547
• Parties: ROWAN et al. v. STATE.
• Court: Maryland Court of Appeals

3 A.2d 753

175 Md. 547

ROWAN et al. v. STATE.

No. 28.

Court of Appeals of Maryland

January 10, 1939

Appeal from Circuit Court, Montgomery County; Hammond Urner, Arthur D. Willard, and Charles W. Woodward, Judges.

Joseph J. Rowan was convicted on nine counts of an indictment embracing the charges of unlawfully making and selling books or pools on race horses, and Eleanor E. Rowan was convicted on two counts of an indictment embracing charges of knowingly keeping and occupying or suffering to be kept and occupied house for the purpose of betting and gambling and selling books or pools upon results of races, and they appeal.

Reversed and new trial awarded.

Stedman Prescott, of Rockville, for appellants.

Hilary W. Gans, Deputy Atty. Gen. (Herbert R. O'Conor, Atty Gen., and James H. Pugh, State's Atty., of Rockville, on the brief), for the State.

Argued before BOND, C.J., and OFFUTT, PARKE, MITCHELL, SHEHAN, and JOHNSON, JJ.

MITCHELL, Judge.

The appellants, Joseph J. Rowan and Eleanor E. Rowan, in conjunction with a certain Abraham Kline, were indicted in Montgomery County, Maryland, and elected to submit their case to the Judges of the Circuit Court for that County for trial. The verdict of the Court being not guilty as to Kline, but guilty as to the other two traversers, the latter have appealed from the respective judgments entered on the respective verdicts against them. The indictment under which the appellants were convicted contains 11 counts, charging the traversers in various forms with unlawfully making and selling books or pools on horse races, and with keeping a house for the purpose of betting and gambling in divers manners. The Court, sitting as a jury, found the appellant John J. Rowan guilty on the first nine counts in the indictment, which in effect embraced the charges of unlawfully making and selling books or pools on horse races and it found the appellant Eleanor E. Rowan guilty on the fifth and seventh counts of said indictment, which more particularly embraced the charges of knowingly keeping and occupying or suffering to be kept and occupied a house for the purpose of betting and gambling in divers manners, and selling books or pools upon the results of races.

At the trial of the case the State first produced Raymond B Leavitt, manager of the Shepherd telephone exchange of the C. & P. Telephone Company, who testified that, according to the original records of the company, the name of Joseph J. Rowan was listed as a subscriber, and that the address at which service of the company was connected was 208 Baltimore Avenue, Takoma Park, Maryland. The witness thereupon verified an original record of the company, showing the installation of three telephones, as of the above address, sometime prior to August 19, 1935; the numbers being Shepherd 3760, 3761 and 3762, and being changed to Shepherd 4600, 4601 and 4602 on April 15, 1937; he then testified that the record of the transactions was made in the ordinary course of the company's business, and that it showed that the service was disconnected March 31, 1938, upon the order of J. J. Rowan.

Theodore F. Vollten, the next witness offered by the State, testified that he was a detective sergeant of the Montgomery County Police Department; that, acting under instructions from the State's Attorney for said County, on December 2, 1937, he visited Takoma Park in quest of information in connection with alleged bookmaking conducted in or on the premises known as 208 Baltimore Avenue, Takoma Park, Montgomery County, Maryland; that he parked his automobile a square away from the above premises, in front of premises known as 113 Baltimore Avenue; that a connection to a terminal box on a telephone pole was made by a man whose name he did not know, but who was an employee of the telephone company designated as 'Number 17'; that the witness then put earphones on his head, which connected with a service line of the company, and that the operator was asked 'what number this was?' Although the witness did not then testify as to the reply the operator made to the above query, he was allowed to testify, subject to exception, as to conversations he then heard, relating to the placing of wagers on horse races, and to state that these conversations were heard over telephone number Shepherd 4600. Following this testimony the witness then stated that upon the basis of the information so procured, he obtained a search warrant and proceeded to search the premises known as 208 Baltimore Avenue. He was then shown an exhibit consisting of four papers attached together, and upon being asked to identify the same, replied that it was the search warrant used in connection with his search of the above premises; whereupon the trial Court sustained an objection to the admissibility of any evidence based upon such information as the witness may have obtained under the search warrant, but overruled the objection to the testimony of the witness with reference to intercepted calls overheard by him through the method of wiretapping. On cross-examination the witness testified that the premises he searched were about one and a half squares from the District of Columbia line, and that he could hear the bell of Shepherd 4600 ring, whereupon the receiver would be lifted and an inside voice be heard to say 'hello', and another voice would say 'Doc'.

Margaret E. Hickerson, another State witness, identified the original service contract between J. J. Rowan and the C. & P. Telephone Company, of which she was an employee, as having been signed by Rowan in her presence, and initialed by her; and she further identified Mr. Bowan as the subscriber to the contract.

The State next put in evidence land records tending to show that Eleanor E. Rowan acquired title to Lot 18 of Block 75 of Takoma Park Land and Trust Company subdivision, as shown in Plat Book No. 2 of the Land Records of Montgomery County, by deed dated November 8, 1927, and recorded October 31, 1927; and that said property was subsequently conveyed by Mrs. Rowan, widow, to E. Clara Turner by deed dated December 31, 1937, recorded January 3, 1938. And it thereafter offered the testimony of John T. Williams, a clerk in the office of the County Commissioners of the county, tending to show by the records of said office that the lot in question was the same lot as that numbered 208 Baltimore Avenue; the witness testifying that the above records were kept for the purpose of tax assessments, and were prepared in the ordinary course of the business of the County Commissioners. The witness further detailed that the assessment books showed no property, other than the property in question, located in the town of Takoma Park, assessed in the name of Mrs. Rowan. Other testimony tending to show the identity of the premises was offered by the State.

In addition thereto, the State supplemented the testimony of the witness Vollten bearing upon the manner in which the information was secured by the process of wiretapping, with the testimony of John Huiess, a stenographer. The latter witness stated that on December 2, 1937, in company with Vollten, and with the employee of the telephone company known as Number 17, he visited the scene of the wiretapping; that the employee of the company then tapped a telephone wire and asked 'what number it was'; that at that time the witness was equipped with earphones and prepared to take down the conversations; that the reply to the above query was in a lady's voice and simply said 'Shepherd 4600'; that the witness assumed the latter voice was that of the telephone operator. He was then asked:

'Q. How did you know anybody came in on the line? A. I could only hear the answer of the lady.

'Q. Did she come in on the line and say 'Number, please'? A. No. When No. 17 asked what number was this, a lady's voice answered, 'Shepherd 4600'.

'Q. How did No. 17 know somebody was on the other end of the line? A. By instruments he had there.

'Q. (by the Court) When you testified before, according to the stenographer's notes, you said the voice said 'operator'? A. There was one place in the notes, and I so testified that the voice did say 'operator', but not in that conversation.

'Q. What part of the conversation did the voice say 'operator'? A. Where there was a break in the line from another number. Before the bell rang, inside said 'hello' and the telephone operator, which I assumed to be a telephone operator, said 'is the receiver on Shepherd 4602 off the hook', and the answer was by a man, who said, 'No, the receiver is not off the hook, operator.'

'Q. When did this lady's voice use the word operator? A. That was toward the afternoon.

'Q. In what connection was that? A. When the wire was broken down by Number 17, he did something with his instrument, and the telephone operator said, 'What number, please?'

'Q. The same voice? A. A lady's voice.

'Q. Was it the same as the other one? A. It sounded the same all afternoon.'

This witness also testified that on December 1, 1937, when Sergeant Vollten was not present, in company with No. 17, and with the use of earphones, he heard a conversation over the telephone line under the following circumstances: No. 17 attached an instrument to a wire and asked what the number was; the witness heard a voice which he assumed was a telephone operator say 'operator,' and later he heard the supposed operator say 'Shepherd 4600'. He then proceeded to testify to a number of conversations which he had taken down as coming over the wire with which he was connected, detailing various transactions relating to placing bets on various horses and horse races these conversations apparently relating to those heard by him on both occasions when he was present, namely, on December 1...